Chapter 13 Regulation of Obscene and Other Erotic Material Sexual speech that meets a three part test for obscenity falls outside first amendment protection 2008 Paul Little known as Max Hardcore adult movie producer was convicted of transporting obscene material via Internet and US mail In 2010 federal judge dismissed John Stagliano and his Evil Angel business case THE LAW OF OBSCENITY Two important facts The nation s high court made it clear more than 50 years ago in Roth v US that a narrow category of sexually explicit speech called obscenity is not protected by first amendment freedoms of speech and press The Supreme Court articulated in 1973 in Miller v California a test still used by all courts for determining when speech is obscene Problems still exist because o The Miller obscenity test leaves much flexibility and wiggle room for interpretation in its actual application by judges and juries o The test also embrace the use of contemporary community standards that vary from state to state leading to the anomalous result that any given adult DVD might be protected by the first amendment in one state but not another o Technologies like the web cell phone cable satellite VOD PPV have made adult content readily accessible and children can get to it with greater ease o Some people feel that speech considered obscene under Miller nonetheless deserves 1A protection o There is question of the inefficient use of scarce govt monetary resources in prosecuting obscenity cases today when the content involved adults who freely consented to take part in the activities Pornography is a term with no legal significance Not synonymous with obscenity Obscenity A narrow class of material defined by the Supreme Court in the Miller test Material that is obscene is not protected by the first amendment Obscene material is sometimes referred to as hard core pornography Indecent Material Material that may be sexually graphic often referred to as adult material or sexually explicit material This material is protected under the first amendment However such material may be barred in works available to children variable obscenity laws and in over the air as opposed to cable or satellite generated radio and TV broadcasts Pornography this term has no legal significance but is often used by laypeople and politicians to describe anything from real obscenity to material such as a passionate love scene that is simply offensive to the viewer The overuse and misuse of this imprecise term adds more confusion to an already muddled legal landscape EARLY OBSCENITY LAW The first obscenity prosecution in the US occurred in 1815 when Jesse Sharpless was fined for exhibiting a painting of a man in an imprudent posture with a woman There were previous common law convictions for crimes against God E g Joe Cleland s Memoirs of a Woman of Pleasure erotically enhanced by Peter Holmes in 1821 As the 19th century progressed obscenity laws and prosecutions became more common ebbing and flowing with the major reform movements of the 1820 s 1830 s and in the wake of the civil war The first federal obscenity statute a customs law regulating the importation of obscene articles was adopted in 1842 The most comprehensive federal statute adopted during the century became law in 1873 Comstock Act called so because of the intense pressure applied on Congress by Anthony Comstock The law declared that all obscene books pamphlets pictures and other materials were nonmailable The Comstock act was amended but remains the federal law today Federal agencies such as the customs bureau and the postal service were the nation s most vigilant obscenity fighters during the later 19th and early 20th century They confiscated books magazines objects arts etc The supreme court saw a HUGE amount of obscenity cases 90 bw 1957 1977 DEFINING OBSCENITY When first considering what is obscenity courts borrowed a British definition called the Hickins rule Under Hickins a work is obscene if it has a tendency to deprave and corrupt those whose minds are open to such immoral influences and into whose hands it might fall E g if it could influence a child it is obscene for everyone Also if any part of a work was obscene the whole work was obscene In 1957 the Supreme Court abandoned the Hickins rule declaring that because of this rule American adults were permitted to read or watch only what was fit for children 1957 Roth v US Roth Memoirs test developed by Supreme Court o The dominant theme of the material taken as a whole must appeal to prurient interest in sex o A court must find that the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters o Before something can be found obscene it must be utterly without redeeming social value CONTEMPORARY OBSCENITY LAW Pres Lyndon Johnson appointed a commission in 1967 to study the regulation of obscenity The panel recommended repeal of erotic material for consenting adults restrictions But Richard Nixon was now president and he didn t take the recc THE MILLER TEST Marvin Miller was convicted of violating the California Penal Code for sending five unsolicited brochures to a restaurant in Newport Beach The brochures containing erotic material The Miller case new definition for obscenity o An average person applying contemporary local community standards finds that the work taken as a whole appeals to prurient interest o The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law o The work in question lacks serious literary artistic political or scientific value AN AVERAGE PERSON Left at the discretion of the judge or jury Jury must use its knowledge of the standards of the residents in the community to decide whether it appeals to a prurient interest Community adults not children Prurient interest a shameful or morbid interest in nudity sex or excretion Does not include violence and also must look at the work as a whole COMMUNITY STANDARDS Usually means state standards In prosecutions initiated by the postal service the govt is free to choose a venue in which to try the case E g could be tried in state where material originated or where it was shipped or anywhere in between Venue shopping purposely picking the state where the standards assure conviction When imported erotic material is seized the standards of the state in which the material is seized are applied at trial Internet cases
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